Guide to asylum and refugee status

What is asylum or refugee status and who qualifies?

An asylee or refugee is an individual who establishes a well-founded fear of political persecution on account of race, religion, nationality, political opinion or membership in a particular group. The difference between an asylee and a refugee is that an asylee is a person applying for such protection within the US, and a refugee is the term used for a person applying for such protection outside the US.

In addition to i) proving a well-founded fear on one of the enumerated bases, applicants for asylum should ii) apply within 1 year of entering the US.

What is a "well-founded fear"?

A "well-founded fear," again, has to be on account of a specific basis of race, religion, nationality, political opinion or membership in a particular group. This basic definition is proven to be difficult to consistently implement, particularly in cases where a person is claiming that their persecution is due to membership in a particular group. Generally, social group should be somewhat narrowly defined. Another issue within the discussion of "well-founded fear" include the fact that an applicant must prove that the fear is reasonable, and "reasonable" means that there is a reasonable possibility that the person would be persecuted. The US Supreme Court suggests that a 1/10 rule, in that if there is a 10% risk that the applicant will suffer persecution, the fear is well-founded.

How does the 1-year rule apply?

While there is a rule requiring asylum applicants to apply within 1 year of entering the US, there are exceptions. Some of these exceptions include changed country conditions and extraordinary circumstances. In the case of changed country conditions, the applicant would have to show that the circumstances have changed in their home country, to the point a claim for asylum would accrue. At the point that the claim accrued, the asylum applicant must apply within a reasonable time. As for extraordinary circumstances leading to delay in filing, such circumstances can include serious illness or disability, which may include PTSD as a result of past harm.

When can I apply for asylum or refugee status?

As previously mentioned, there is a 1 year time limit, but otherwise, there is no annual quota on asylum. There is, however, an annual quota for refugees. An interview is generally scheduled with an asylum officer within 3-6 weeks of applying, a decision is granted 2 weeks from the interview. Cases heard before an asylum officer are called "affirmative asylum" cases. If the case is referred to the immigration judge, the applicant may plead their asylum claim before the judge. Timing of the individual hearing before the judge varies based on the judge's calendar. Cases heard before a judge are called "defensive asylum" cases.

What benefits does asylum or refugee status provide?

There are many benefits that come with obtaining Asylee or refugee status. At the time the an affirmative asylum application is approved, you will be authorized for employment. In cases where the application is pending 150 days, you may apply for work authorization and receive it as early as 180 days from the time the asylum application had been pending. An asylee or refugee may also apply to bring in immediate relatives to the US as derivatives who may also receive employment authorization. The most important benefit of asylee or refugee status is that you may independently file for a green card through adjustment of status after being physically present in the US for 1 year since status was granted, and refugees are required to adjust status. It is highly unadvisable to return to the country of persecution at any time before applying for citizenship.

What is the attorney's role in an affirmative or defensive asylum application?

The review of asylum provided in this summary is very basic, and should not misguide anyone into believing that the process is simple. An attorney will ensure that the best evidence available will be submitted, including evidence that the applicant may secure, to relevant details emphasized in human rights reports as they apply to the applicant. The statutory and precedential case law is very nuanced, and a qualified attorney will be able to properly classify the applicant and present a strong case. In cases of defensive asylum, in which the applicant is in removal proceedings, it is critically important to have a qualified attorney to present a case before an immigration judge. Experience and success in presenting asylum cases before immigration court is key.